Latest Giddings scandal shows Idaho Legislature must close public records loophole

Rep. Priscilla Giddings, R-White Bird, is once again facing legal troubles stemming from the alleged rape of a legislative intern last year by Rep. Aaron von Ehlinger, R-Lewiston, Giddings’ political ally. And her denial of a public records request ahead of legal proceedings shows why a loophole in the Idaho Public Records Act must be closed immediately.

Giddings was censured by the Idaho House last year for sharing a right-wing blog article that included the intern’s photograph, name and personal information.

Giddings is now being sued, with the woman’s lawyer alleging that Giddings was engaged in a public shaming campaign to retaliate against the intern for coming forward. A related suit alleges that Giddings has improperly responded to a records request for communications between herself and von Ehlinger from that time period. Giddings claims no such records exist.

This week’s bombshell: Idaho Statesman reporter Ryan Suppe discovered that the metadata attached to von Ehlinger’s news release denying the rape allegation lists the original author and last editor of the release as Giddings. She would not answer Suppe’s questions about the metadata, but in a statement to William Spence of the Lewiston Tribune, she claimed the file in question was a “fabrication.”

But there was yet another problem with this claim: The same day of that news release containing von Ehlinger’s denial of the rape, Giddings was offering further documents to the Tribune, seeking positive coverage of him.

Just as Giddings refused to comment on the metadata to Suppe, she refused to answer Spence’s questions as to why she claims not to have documents she was offering to furnish the Tribune last April.

Why would Giddings not have records of her communications with von Ehlinger? The most likely scenario seems to be a frequent roadblock journalists encounter at the Idaho Legislature: lawmakers regularly and preemptively deleting records that should be public. It’s unethical. It’s a betrayal of the public trust. But it is legal and commonplace, especially in the far-right faction, which likes to claim that it is fighting against government overreach.

This practice is legal because of a gaping loophole in Idaho’s Sunshine Law: There is no requirement that lawmakers retain records for any period of time.

There are detailed legal requirements for how long cities and counties must retain various kinds of records – from a few years to decades – that the Legislature wrote into Idaho Code.

Executive branch agencies have similar record retention policies that they’ve put in place for themselves.

The Idaho Legislature has uniquely shielded itself from the requirements of transparency in place for all other portions of Idaho government. Lawmakers can delete emails, text messages and virtually anything else they want, as long as they have not already received a request for those records, as Spence detailed last year.

It’s no secret that in some corners of the Idaho Legislature, encrypted messaging applications such as Signal and WhatsApp — with autodelete functions — are a common way for lawmakers to interact. These applications ensure that there is no record of the content of these communications held by telephone companies, which could turn them over in response to a subpoena. And once the messages are deleted – often automatically within a few hours – no one can retrieve what was said. The records are simply lost.

These encrypted messaging applications were originally designed with a noble purpose. If you live in China or Egypt or another authoritarian country with a heavy surveillance infrastructure, they allow secure private communication free from government surveillance.

But in this case, the government is using these applications to shield itself from transparency and accountability to the people it serves.

Lawmakers should be banned from interacting with other public officials using encrypted applications, and retention requirements should be in place to require all written communications between lawmakers to be retained for a period of at least a year. If the Legislature has any real commitment to transparency, it will pass such a law this session.

This story was originally published January 28, 2022 at 4:00 AM.